Housing Development (Control and Licensing) 1 LAWS OF MALAYSIA. Act 118 HOUSING DEVELOPMENT (CONTROL AND LICENSING) ACT 1966

Transcription

1 Housing Development (Control and Licensing) 1 LAWS OF MALAYSIA Act 118 HOUSING DEVELOPMENT (CONTROL AND LICENSING) ACT 1966 Incorporating all amendments up to 1 January 2006

2 2 HOUSING DEVELOPMENT (CONTROL AND LICENSING) ACT 1966 First enacted (Act No. 38 of 1966) Revised (Act 118 w.e.f. 16 August 1973) PREVIOUS REPRINTS First Reprint Second Reprint Third Reprint

3 3 LAWS OF MALAYSIA Act 118 HOUSING DEVELOPMENT (CONTROL AND LICENSING) ACT 1966 ARRANGEMENT OF SECTIONS PART I PRELIMINARY Section 1. Short title and application 2. Saving and exemption 3. Interpretation 4. Appointment of Controller, Deputy Controllers, Inspectors and other officers and servants PART II LICENSING OF HOUSING DEVELOPERS 5. Prohibition against housing development except by virtue of a licence and provisions relating to the grant of a licence 6. Conditions or restrictions for the grant of a licence 6A. Controller to keep deposit 6B. Controller may forfeit deposit PART III DUTIES OF A LICENSED HOUSING DEVELOPER 7. Duties of a licensed housing developer 7A. Licensed housing developer to open and maintain Housing Development Account 7B. Licensed housing developer for the purpose of sections 8, 8A, 11 and Arrangement or agreement affecting the business of a licensed housing developer 8A. Statutory termination of sale and purchase agreements 9. Audit

4 4 Laws of Malaysia ACT 118 Section PART IV INVESTIGATION AND ENFORCEMENT 10. Investigation 10A. Powers of entry, search and seizure 10B. Search of person 10C. Obstruction to exercise of powers by an Inspector 10D. Requirement to provide translation 10E. Power to examine persons 10F. Specific persons in respect of whom powers of investigation may be exercised 10G. Assistance to police or other public officer 10H. Protection of informers 10I. Authority to act 10J. Limitation on the powers of an Inspector PART V POWERS OF MINISTER 11. Powers of the Minister to give directions for the purpose of safeguarding the interests of purchasers 12. Powers of the Minister to give general directions 13. Revocation and suspension of a licence 13A. Controller to report the conduct of an architect or engineer 13B. Transfer or assignment of a licence 14. Opportunity of being heard to be afforded before revocation or suspension of a licence and in certain other cases 15. Individual not eligible to take part in management of the business of a licensed housing developer 16. Right of appeal to the Minister by an aggrieved licensed housing developer against the decision of the Controller PART VI TRIBUNAL FOR HOMEBUYER CLAIMS 16A. Meaning of homebuyer 16B. Establishment of Tribunal for Homebuyer Claims

5 Housing Development (Control and Licensing) 5 Section 16C. Membership of Tribunal 16D. Temporary exercise of functions of Chairman 16E. Vacation of office 16F. Revocation of appointment 16G. Resignation 16H. Filling of vacancy 16I. Remuneration 16J. Secretary to Tribunal and other officers 16K. Sittings of Tribunal 16L. Commencement of proceedings 16M. Jurisdiction of Tribunal 16N. Limitation of jurisdiction 16O. Extension of jurisdiction by agreement 16P. Abandonment to bring claim within jurisdiction 16Q. Cause of action not to be split 16R. Exclusion of jurisdiction of court 16S. Notice of claim and hearing 16T. Negotiation for settlement 16U. Right to appear at hearings 16V. Proceedings to be public 16W. Evidence 16X. Tribunal may act in absence of party 16Y. Awards of the Tribunal 16Z. Reference to a Judge of the High Court on a question of law 16AA. Reasons for decision 16AB. Orders and settlement to be recorded in writing 16AC. Decisions of Tribunal to be final 16AD. Criminal penalty for failure to comply 16AE. Procedure where no provision is made 16AF. Want of form 16AG. Disposal of documents, etc. 16AH. Act or omission done in good faith 16AI. Regulations in respect of the Tribunal

6 6 Laws of Malaysia ACT 118 PART VII MISCELLANEOUS Section 17. Indemnity and protection against suit and proceedings 18. Offences relating to a licence under section Offences by a housing developer 20. Offences by a director of or a person connected with the business of a licensed housing developer in certain cases 21. Penalty for offences not otherwise provided for 22. Liability of director, manager and other officials for offences committed by companies and liability of a person for acts done by others 22A. Public servants and public officers 22B. Application of Public Authorities Protection Act C. Right to initiate and maintain actions 23. Prosecution 23A. Power to compound 24. Powers to make regulations SCHEDULE

7 Housing Development (Control and Licensing) 7 LAWS OF MALAYSIA Act 118 HOUSING DEVELOPMENT (CONTROL AND LICENSING) ACT 1966 An Act to provide for the control and licensing of the business of housing development in Peninsular Malaysia and for matters connected therewith. [29 August 1969, P.U. (B) 212/1969] PART I PRELIMINARY Short title and application 1. (1) This Act may be cited as the Housing Development (Control and Licensing) Act 1966.* (2) (Omitted). (3) This Act shall apply only in Peninsular Malaysia. Saving and exemption 2. (1) (Deleted by Act A1142). (2) The Minister may by notification published in the Gazette exempt any housing developer from any or all of the provisions of this Act. (3) The provisions of this Act which relate to a company shall be construed as in addition or supplementary to, and not in derogation from, the provisions of any written law relating to companies. * NOTE Where, on or after 1 December 2002, a reference is made in any written law to the Housing Developers (Control and Licensing) Act 1966, such reference shall be construed as a reference to the Housing Development (Control and Licensing) Act 1966 see section 5 Act A1142.

8 8 Laws of Malaysia ACT 118 Interpretation 3. In this Act, unless the context otherwise requires bank means any bank licensed under the Banking and Financial Institutions Act 1989 [Act 372] or under the Islamic Banking Act 1983 [Act 276]; body of persons means a group of persons, not being an incorporated body or group; certificate of fitness for occupation means the certificate of fitness for occupation given or granted under the Street, Drainage and Building Act 1974 [Act 133] and any by-laws made under that Act; company means any company incorporated, formed or registered under any written law for the time being in force in Malaysia relating to companies, and includes any body corporate established under any written law in force in Malaysia; Controller means the Controller of Housing appointed under section 4; Deputy Controller means the Deputy Controller of Housing appointed under section 4; finance company means any finance company licensed under the Banking and Financial Institutions Act 1989; firm means an unincorporated body of persons (whether consisting of individuals or of corporations or partly of individuals and partly of corporations) associated together for the purpose of carrying on business; housing accommodation includes any building, tenement or messuage which is wholly or principally constructed, adapted or intended for human habitation or partly for human habitation and partly for business premises but does not include an accommodation erected on any land designated for or approved for commercial development; housing developer means any person, body of persons, company, firm or society (by whatever name described), who or which engages in or carries on or undertakes or causes to be undertaken a housing development;

9 Housing Development (Control and Licensing) 9 housing development means to develop or construct or cause to be constructed in any manner more than four units of housing accommodation and includes the collection of moneys or the carrying on of any building operations for the purpose of erecting housing accommodation in, on, over or under any land; or the sale of more than four units of housing lots by the landowner or his nominee with the view of constructing more than four units of housing accommodation by the said landowner or his nominee; Housing Development Account means an account opened and maintained by a licensed housing developer pursuant to section 7A; housing lot means any piece of land surveyed or otherwise, to which a lot number has been assigned to it and which is subject to the category building in accordance with the National Land Code 1965 [Act 56 of 1965]; Inspector means an inspector appointed under section 4; licence means a licence granted under section 5; licensed housing developer means any housing developer licensed under section 5 to engage in or carry on or undertake a housing development and includes the holder of any power of attorney of such housing developer duly created under the Powers of Attorney Act 1949 [Act 424]; local authority includes any person or body of persons appointed or authorized under any written law to exercise and perform the powers and duties which are conferred and imposed on a local authority under any written law; prescribed means prescribed by regulations made under this Act, and where no mode is mentioned means prescribed from time to time by order published in the Gazette; purchaser means any person who purchases housing accommodation or who has any dealing with a licensed housing developer in respect of the acquisition of housing accommodation; stakeholder means any solicitor holding moneys as stakeholder for payment to a housing developer pursuant to sale and purchase agreements in respect of a housing development which the housing developer is engaged in, carries on or undertakes or causes to be undertaken;

10 10 Laws of Malaysia ACT 118 Tribunal means the Tribunal for Homebuyer Claims established under section 16B. Appointment of Controller, Deputy Controllers, Inspectors and other officers and servants 4. (1) For the purpose of this Act, the Minister may appoint a Controller of Housing and such number of Deputy Controllers of Housing, Inspectors of Housing and other officers and servants as the Minister may deem fit from amongst members of the public service. (2) The Controller and Deputy Controllers shall have and may exercise any of the powers conferred on an Inspector by or under this Act. (3) The Controller may, in writing, delegate all or any of his powers or functions under this Act, except his power of delegation, to any Deputy Controller, Inspector, officer or servant appointed under subsection (1). (4) Without prejudice to subsection (2), the Controller may, in writing, delegate any of his powers and functions under this Act in respect of the investigation of offences under this Act and the enforcement of this Act to any public officer or officer of a local authority. (5) Any delegation under subsection (3) or (4) may be revoked at any time by the Controller and does not prohibit the Controller from himself exercising the powers or performing the functions so delegated. PART II LICENSING OF HOUSING DEVELOPERS Prohibition against housing development except by virtue of a licence and provisions relating to the grant of a licence 5. (1) No housing development shall be engaged in, carried on, undertaken or caused to be undertaken except by a housing developer in possession of a licence issued under this Act.

11 Housing Development (Control and Licensing) 11 (2) Except with the written consent of the Controller no housing developer other than a licensed housing developer shall assume or use in relation to his business or any part of his business the words housing developer or any of its derivatives or any other word indicating the carrying on of the business of housing development. (3) A housing developer who desires to engage in or carry out or undertake or cause to be undertaken a housing development shall apply to the Controller for a licence and any such application shall be made in the prescribed form and in the case of any applicant listed in column (1) of the Schedule the application shall be accompanied by the documents listed against him in column (2), every such document being verified by means of a statutory declaration made by the person listed in column (3) of the said Schedule. (4) Upon receiving an application for a licence under this section, the Controller may grant the licence applied for or refuse to grant such a licence; and in granting such a licence the Controller may impose thereon such conditions (including the period during which the licence shall be valid) as he may deem fit and proper. (4A) No application for a licence under this section shall be considered unless the prescribed fees have been paid to the Controller. (4B) There shall be charged and paid to the Controller on the grant of a licence and at such intervals after such grant during the period of validity of the licence such fees as may be prescribed. (5) Subject to section 14, the Controller may at any time vary, cancel or alter the conditions imposed under subsection (4) or impose any new or additional conditions; or, where the licence is not subject to any condition, impose thereon such conditions as the Controller may deem fit for carrying out the provisions of this Act. Conditions or restrictions for the grant of a licence 6. (1) Subject to the exercise of power of waiver by the Minister under subsection (2), the licence applied for under section 5 shall not be granted (a) unless the applicant has a capital issued and paid up in cash of not less than two hundred and fifty thousand ringgit and makes a deposit with the Controller of not less than two

12 12 Laws of Malaysia ACT 118 hundred thousand ringgit in cash or in such other form as the Minister may determine, if the application is made by a company; or (b) unless the applicant makes a deposit with the Controller of not less than two hundred thousand ringgit in cash or in such other form as the Minister may determine, if the application is made by a person or body of persons; (c) unless the applicant is not himself nor is any member or partner thereof a person convicted of an offence involving fraud or dishonesty or an undischarged bankrupt, if the application is made respectively by a person or a body of persons or a firm; (d) unless no one who is convicted of an offence involving fraud or dishonesty or who is an undischarged bankrupt is holding office as director, manager or secretary of the applicant or other similar office or position, if the application is made by a company, or is holding office as president, secretary or treasurer of the applicant or other similar office or position, if the application is made by a society; (e) unless, at the time the application is made, the applicant or any member or partner of the applicant, if the applicant is a body of persons or firm, or a director, manager or secretary of the applicant, if the applicant is a company, has not, due to a conviction for an offence under this Act, been sentenced to a fine exceeding ten thousand ringgit or to imprisonment (other than imprisonment in default of a fine not exceeding ten thousand ringgit); (f) unless, at the time the application is made, a person who had been a director of or had been directly concerned in the management of the business of a licensed housing developer which has been wound up by a court is not a director or is not directly concerned in the management of the business of the applicant; and (g) if the registration of the applicant s architect or engineer has been cancelled and has not been reinstated under the Architects Act 1967 [Act 117] or the Registration of Engineers Act 1967 [Act 138] at the time the application is made.

13 Housing Development (Control and Licensing) 13 (1A) For the purposes of paragraphs (1)(d), (e) and (f), if the applicant is a company, the expression applicant shall include the holding company of the applicant, or a subsidiary of the applicant or a subsidiary of the holding company of the applicant. (2) The Minister may in his absolute discretion waive any or all of the conditions set out in paragraph (1) (a), (b) or (d) or substitute any or all of the said conditions for such other conditions as he may consider fit and proper. Controller to keep deposit 6A. Subject to any direction of the Minister, the Controller shall keep the deposit made under paragraphs 6(1)(a) and (b) until the expiry of the defect liability period of the housing development. Controller may forfeit deposit 6B. If any licensed holding developer (a) is carrying on his business, in the opinion of the Controller, in a manner detrimental to the interest of the purchasers or to any member of the public; (b) has insufficient assets to cover his liabilities; (c) is contravening any of the provisions of this Act; or (d) has ceased to carry on housing development in Peninsular Malaysia, the Controller may, after having given the licensed developer an opportunity to submit reasons within a specified time on why the deposit under paragraph 6(1)(a) or (b) should not be forfeited, forfeit the whole or a part of the deposit.

14 14 Laws of Malaysia ACT 118 PART III DUTIES OF A LICENSED HOUSING DEVELOPER Duties of a licensed housing developer 7. In addition to the liabilities and duties imposed in sections 8 and 9, a licensed housing developer shall (a) within four weeks of the making of any alterations in or to any documents submitted to the Controller under subsection 5(3) furnish to the Controller written particulars of the alterations; (b) exhibit at all times in a conspicuous position in any office and branch office of the licensed housing developer a copy of his licence, advertisement and sale permit and a copy of his last audited balance-sheet as soon as the same is available and such information as the present or former full name, usual residential address, nationality, nationality of origin (where the present nationality is not that of origin), business or occupation (if any) of each person who has the control and management of the business of the licensed housing developer and particulars of any other directorship held by that person; (c) keep or cause to be kept in his office in Peninsular Malaysia such accounting and other records as will sufficiently explain the transactions and the financial position of the licensed housing developer and enable true and fair profit and loss accounts and balance-sheets and any documents required to be attached thereto to be prepared from time to time, shall cause these records to be kept in such manner as to enable them to be conveniently and properly audited; (d) every year appoint an auditor in the manner required under section 9; (e) within six months after the close of the financial year of the licensed housing developer in question send to the Controller and also publish in the Gazette a copy of the report of the auditor prepared under section 9 together with a copy of his balance-sheet and profit and loss account;

15 Housing Development (Control and Licensing) 15 (f) not later than the 21st day of January and the 21st day of July of each year, send to the Controller a statement, in such form and containing such information as the Controller may from time to time determine, on the progress of the housing development which the housing developer is engaged in, carries on or undertakes or causes to be undertaken; (g) where he considers that he is likely to become unable to meet his obligations to the purchasers at any stage of the housing development before the issuance of the certificate of fitness for occupation, forthwith inform the Controller of such fact; (h) inform the Controller of the handing over of vacant possession of the housing accommodation in the housing development to the purchasers and submit a certified true copy of his architect s certificate certifying that the construction of the housing accommodation has been duly completed and that water and electricity supplies are ready for connection to the housing accommodation; (i) inform the Controller if the appropriate authority has refused to accept the submission of any document relating to the issuance of certificates of fitness for occupation and submit the refusal letter from the appropriate authority to the Controller; (j) ensure that the development of the housing accommodation has been carried out in accordance with any requirements prescribed under any law regulating buildings and has exercised all such diligence as may be required for the issuance of certificates of fitness for occupation and for the issuance and transfer of the titles to the housing accommodation to the purchasers; and (k) inform the Controller of the progress in the issuance of separate or strata titles for the housing accommodation and the transfer of such titles to the purchasers. Licensed housing developer to open and maintain Housing Development Account 7A. (1) Subject to subsection (9), every licensed housing developer shall open and maintain a Housing Development Account with a bank or finance company for each housing development undertaken by the licensed housing developer.

16 16 Laws of Malaysia ACT 118 (2) Where a housing development is to be developed in phases, the licensed housing developer shall open and keep a Housing Development Account under subsection (1) for each phase of such housing development. (3) The licensed housing developer shall pay into the Housing Development Account of a housing development the purchase moneys received by the licensed housing developer from the sale of housing accommodation in the housing development and any other sum of money which are required by regulations made under this Act to be paid into the Housing Development Account. (4) The licensed housing developer shall not withdraw any money from the Housing Development Account except as authorized by regulations made under this Act. (5) Subject to paragraph (6)(b), all moneys in the Housing Development Account and all moneys held by the stakeholder shall, notwithstanding any other written law to the contrary, be deemed not to form part of the property of the licensed housing developer in the event (a) the licensed housing developer enters into any composition or arrangement with his creditors or has a receiving order or an adjudication order made against him; or (b) the licensed housing developer, being a company, goes into voluntary or compulsory liquidation. (6) Upon the happening of any of the event referred to in subsection (5) (a) the moneys in the Housing Development Account and moneys held by the stakeholder shall vest in the official receiver, trustee in bankruptcy or liquidator as the case may be, to be applied for all or any of the purposes for which moneys in the Housing Development Account and moneys held by the stakeholder are authorized by regulations made under this Act to be withdrawn; and (b) any moneys remaining in the Housing Development Account and moneys held by the stakeholder, after all payments have been made pursuant to paragraph (a) and all liabilities and obligations of the licensed housing developer under

17 Housing Development (Control and Licensing) 17 the sale and purchase agreements in respect of the housing development have been fully discharged and fulfilled, shall be held by the official receiver, trustee in bankruptcy or liquidator, as the case may be, as money belonging to the licensed housing developer to be applied in accordance with the law relating to bankruptcy of or the winding-up of a company. (7) Notwithstanding any other written law to the contrary, all moneys in the Housing Development Account and moneys held by the stakeholder shall not be garnished until all liabilities and obligations of the licensed housing developer under the sale and purchase agreements in respect of the housing development have been fully discharged and fulfilled. (8) Subject to the Banking and Financial Institutions Act 1989 and the Islamic Banking Act 1983, the Minister may, if he thinks necessary, appoint an approved company auditor to investigate the books, accounts and transactions of a Housing Development Account and the licensed housing developer shall pay all expenses incurred hereto. (9) This section shall not apply to any housing development carried on by a licensed housing developer where all the housing accommodation in the housing development will not be offered for sale and purchase before the completion of the housing development and the issuance of certificates of fitness for occupation. (10) Any housing developer who contravenes or fails to comply with this section shall be guilty of an offence and shall, on conviction, be liable to a fine which shall not be less than fifty thousand ringgit but which shall not exceed five hundred thousand ringgit and shall also be liable to imprisonment for a term not exceeding three years or to both. Licensed housing developer for the purpose of sections 8, 8A, 11 and 12 7B. For the purpose of sections 8, 8A, 11 and 12, licensed housing developer includes any housing developer whose licence has expired.

18 18 Laws of Malaysia ACT 118 Arrangement or agreement affecting the business of a licensed housing developer 8. (1) Where a licensed housing developer proposes to enter into an arrangement or agreement to sell, transfer, assign, dispose of or reconstruct his business or management relating to housing development either by amalgamation or otherwise, the licensed housing developer shall as soon as possible notify the Controller of the proposed arrangement or agreement and unless approved by the Controller under subsection (2), the licensed housing developer shall not proceed with that arrangement or agreement. (2) Where the Controller receives the notification of the proposed arrangement or agreement under subsection (1), the Controller may approve the arrangement or agreement or refuse to give approval thereto; and in approving the same he may impose thereon such conditions as he may deem fit and proper for the purpose of carrying into effect the provisions of this Act. Statutory termination of sale and purchase agreements 8A. (1) Notwithstanding anything contained in any agreement, a licensed housing developer may apply to the Minister for approval to terminate all the sale and purchase agreements entered into in respect of a housing development or any phase of a housing development which the housing developer is engaged in, carries on or undertakes or causes to be undertaken if (a) six months after the execution of the sale and purchase agreements, development of the housing accommodation in that housing development or phase has not commenced; and (b) at least seventy-five per cent of all the purchasers who have entered into the sale and purchase agreements have agreed with the housing developer in writing to terminate the sale and purchase agreements. (2) Any application made under subsection (1) shall be supported by (a) the written consent of the licensed housing developer and of each of the purchasers who have agreed to terminate the sale and purchase agreements and such consent shall have been duly executed by the licensed housing developer and

19 Housing Development (Control and Licensing) 19 the purchaser, as the case may be, and witnessed by his solicitors or a Commissioner for Oaths not earlier than one month before the date of the application; and (b) such other documents or evidence as the Minister may require or as may be determined including such evidence which may satisfy the Minister that the licensed housing developer is financially capable of refunding to the purchasers and their financiers all the moneys paid by them to the licensed housing developer if the Minister approves such application. (3) For the purpose of this section, joint purchasers irrespective of any number in a sale and purchase agreement shall be considered as one purchaser. (4) Upon receipt of an application under subsection (1), the Minister may grant or refuse the application for approval. (5) In granting the approval under subsection (4) the Minister may impose such conditions as he may deem fit and proper. (6) The decision of the Minister shall be final and shall not be questioned in any court and it shall be binding on the licensed housing developer and all the purchasers and no injunction shall be granted to restrain any person from carrying out the decision of the Minister. (7) All the sale and purchase agreements in respect of the housing development or the phase of a housing development which is the subject of an approval under subsection (4) including those of the remaining purchasers who have not agreed to the termination shall be deemed to have been duly terminated. (8) The licensed housing developer shall, within fourteen days from the date of receipt of the Minister s approval, inform all the purchasers in writing of the Minister s decision. (9) The licensed housing developer shall refund all moneys received by the licensed housing developer from the respective purchasers free of any interest within the period stated in the Minister s approval.

20 20 Laws of Malaysia ACT 118 (10) Upon receipt of the refund under subsection (9), the purchasers shall immediately cause all encumbrances on the land to be removed and the cost and expenses for such removal shall be borne by and may be claimed as a civil debt from the housing developer. (11) Any person who fails to comply with this section shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding fifty thousand ringgit and to a further fine not exceeding five thousand ringgit for every day during which the offence continues after conviction. Audit 9. (1) Subject to subsection (2), every licensed housing developer shall every year or as often as the need arises appoint a person approved by the Minister to be his auditor; and where a licensed housing developer fails to make the appointment or fails to appoint another auditor in place of an auditor who has resigned his office or dies or whose appointment has been terminated, the Minister may appoint any person who in his opinion is or are fit and proper to be an auditor for the licensed housing developer in question and fix remunerations which shall be paid to the auditor so appointed and such remunerations shall be paid by the licensed housing developer for whom the auditor is or are so appointed. (2) No person having an interest in the business of a licensed housing developer either as a shareholder or otherwise; and no director, officer, employee or agent of a licensed housing developer shall be eligible for appointment as an auditor of the housing developer; and where any person who is appointed as an auditor of a licensed housing developer shall after his appointment acquire an interest in the business of the licensed housing developer or become a director, an officer, employee or agent of the licensed housing developer, he shall forthwith cease to be an auditor of that licensed housing developer. (3) Every auditor of a licensed housing developer shall make a report to the Controller as to the annual balance-sheet and profit and loss accounts of the licensed housing developer for whom the auditor is appointed and shall state in every such report whether or not in his opinion (a) the balance-sheet and the profit and loss accounts are properly drawn up and so as to give a true and fair account of the state of the licensed housing developer s affairs;

21 Housing Development (Control and Licensing) 21 (b) the accounting and the records examined by him are properly kept; and (c) if the auditor has called for an explanation or information from the officers or agents of the licensed housing developer, such explanation or information has been satisfactory. (4) Every auditor of a licensed housing developer shall have a right of access at all times to the accounting and other records of the licensed housing developer and shall be entitled to require such information and explanation as he desires for the purpose of audit from the officers of the licensed housing developer or from any other person who is in possession of the information or who could give the information or explanation. (5) In addition to the duties and powers under this section, every auditor of a licensed housing developer may also exercise the powers and perform the duties conferred or imposed upon the Controller and Inspectors under section 10 relating to the investigation into the affairs of a licensed housing developer or his accounting or other records. PART IV INVESTIGATION AND ENFORCEMENT Investigation 10. (1) Either on his own volition or upon being directed by the Minister under subsection (2), the Controller or an Inspector may from time to time under conditions of secrecy investigate the commission of any offence under this Act or investigate into the affairs of or into the accounting or other records of any housing developer. (2) The Minister may direct the Controller or an Inspector to make an investigation under subsection (1) (a) if he has reason to believe that the housing developer in question is carrying on his business in a manner detrimental to his purchasers; or has assets insufficient to meet his liabilities or is contravening any of the provisions of this Act; or

22 22 Laws of Malaysia ACT 118 (b) if an application for such an investigation is made to him, and every such application shall be supported by not less than five purchasers and accompanied with such evidence and such security as the Minister may require for the purpose of satisfying himself that the application is made in good faith, and of paying the costs of such an investigation. (3) (Deleted by Act A1142). Powers of entry, search and seizure 10A. (1) If it appears to a Magistrate, upon written information on oath and after such inquiry as he considers necessary, that there is reasonable cause to believe that any premises have been used or are about to be used for, or there is in or on any premises evidence necessary to establish, the commission of an offence under this Act, the Magistrate may issue a warrant authorizing an Inspector to whom it is directed, at any reasonable time by day or night and with or without assistance (a) enter any premises and there search for, seize and detain any property, book or other document; (b) inspect, make copies of, or take extracts from, any book or other document so seized and detained; (c) take possession of, and remove from the premises, any property, book or other document so seized and detained; (d) search any person who is in, or on, such premises, and for the purpose of such search detain such person and remove him to such place as may be necessary to facilitate such search, and seize and detain any property, book or other document found on such person; (e) break open, examine, and search, any article, container or receptacle; or (f) stop, detain or search any conveyance. (2) An Inspector authorized under subsection (1) may, if it is necessary so to do (a) break open any outer or inner door of such premises and enter such premises and every part of such premises; (b) remove by force any obstruction to such entry, search, seizure, detention or removal; or

23 Housing Development (Control and Licensing) 23 (c) detain all or any persons found on any premises, or in any conveyance, searched under subsection (1) until such premises or conveyance have been searched. (3) If an Inspector has reasonable cause to suspect by reason of delay in obtaining a search warrant under subsection (1) that (a) the investigation would be adversely affected; or (b) evidence of the commission of an offence is likely to be tampered with, removed, damage or destroyed, he may enter the premises and exercise in, and in respect of the premises, all the powers referred to in subsections (1) and (2) in as full and ample a manner as if he were authorized to do so by a warrant under subsection (1). (4) A list of all things seized in the course of a search made under this section and of the places in which they are respectively found shall be prepared by the Inspector conducting the search and signed by him. (5) The occupant of the premises entered under subsection (1), or some person on his behalf, shall in every instance be permitted to attend during the search, and a copy of the list prepared and signed under subsection (4) shall immediately be delivered to such occupant or person. (6) An Inspector shall, unless otherwise ordered by any court (a) on the close of investigations or any proceedings arising therefrom; or (b) with the prior written consent of the Controller for the Inspector to act on his behalf for this purpose at any time before the close of investigations, release any property, book or other document seized, detained or removed by him or any other Inspector, to such person as he determines to be lawfully entitled to the property, book or other document if he is satisfied that it is not required for the purpose of any prosecution or proceedings under this Act, or for the purpose of any prosecution under any other written law.

24 24 Laws of Malaysia ACT 118 (7) A record in writing shall be made by the Inspector effecting any release of any property, book or other document under subsection (6) in respect of such release specifying therein in detail the circumstances of, and the reason for, such release. (8) Where the Inspector is unable to determine the person who is lawfully entitled to the property, book or other document or where there is more than one claimant to such property, book or other document, the Inspector shall report the matter to a Magistrate who shall then deal with the property, book or other document as provided for in subsections 413(2), (3) and (4) and sections 414, 415 and 416 of the Criminal Procedure Code [Act 593]. Search of person 10B. (1) An Inspector may search any person whom he has reason to believe has on his person any property, book or other document, or other article necessary, in his opinion, for the purpose of an investigation into any offence under this Act, and for the purpose of such search may detain such person for such period as may be necessary to have the search carried out, which shall not in any case exceed twenty-four hours without the authorization of a Magistrate, and may remove him in custody to such place as may be necessary to facilitate such search. (2) An Inspector making a search of a person under subsection (1) may seize, detain, or take possession of any property, book or other document, or article, found upon such person for the purpose of the investigation being carried out by him. (3) No female person shall be searched under this section or under section 10A except by another female person and with strict regard for decency. Obstruction to exercise of powers by an Inspector 10C. No person shall (a) refuse any Inspector exercising his powers under section 10A or 10B access to any premises or any part of such premises, or fail to submit to the search of his person; (b) assault, obstruct, hinder or delay such Inspector in effecting any entrance which he is entitled to effect;

25 Housing Development (Control and Licensing) 25 (c) fail to comply with any lawful demands of any Inspector in the execution of his duties under section 10A or 10B; (d) refuse to give to an Inspector any information which may reasonably be required of him and which he has it in his power to give; (e) fail to produce to, or conceal or attempt to conceal from, an Inspector, any property, book, other document, or article in relation to which an Inspector has reasonable grounds for suspecting that an offence has been or is being committed under this Act; (f) rescue or endeavour to rescue any thing which has been duly seized; (g) furnish to the Inspector as true any information which he knows or has reason to believe to be false; or (h) before or after any seizure, break or otherwise destroy any thing to prevent the seizure or the securing of the thing. Requirement to provide translation 10D. (1) Where an Inspector finds, seizes, detains, or takes possession of any book or other document in the exercise of any power under this Act, and such book or other document or any part of it is in a language other than the national language or the English language, or in any sign or code, the Inspector may orally or in writing require the person who had the possession, custody or control of such book or other document, to furnish to the Inspector a translation in the national language of such book or other document within such period as, in the opinion of the Inspector, would be reasonable having regard to the length of the book or other document, or other circumstances relating to it. (2) No person shall knowingly furnish a translation under subsection (1) which is not an accurate, faithful and true translation, or knowingly make a translation under that subsection which is not accurate, faithful and true.

26 26 Laws of Malaysia ACT 118 Power to examine persons 10E. (1) Where an Inspector suspects any person to have committed an offence under this Act, he may, if in his opinion it is reasonably necessary to do so for the purposes of investigating into such offence (a) order any person orally or in writing to attend before the Inspector for the purpose of being examined orally by the Inspector in relation to any matter which may, in the opinion of the Inspector, assist in the investigation into the offence; (b) order any person orally or in writing to produce before the Controller or the Inspector books, other documents, property, articles, or things which may, in the opinion of the Controller or the Inspector, assist in the investigation into the offence; or (c) by written notice require any person to furnish a statement in writing made on oath or affirmation setting out in the notice all such information which may be required under the notice, being information which, in the opinion of the Controller, would be of assistance in the investigation into the offence. (2) A person to whom an order under paragraph (1)(a) or (b), or a written notice under paragraph (1)(c), has been given shall comply with the terms of such order or written notice, as the case may be, and, in particular (a) a person to whom an order under paragraph (1)(a) has been given shall attend in accordance with the terms of the order to be examined, and shall continue to so attend from day to day as directed by the Inspector until the examination is completed, and shall during such examination disclose all information which is within his knowledge, or which is available to him, or which is capable of being obtained by him, in respect of the matter in relation to which he is being examined, whether or not any question is put to him with regard thereto, and where any question is put to him he shall answer the question truthfully and to the best of his knowledge and belief, and shall not refuse to answer any question on the ground that it tends to incriminate him;

27 Housing Development (Control and Licensing) 27 (b) a person to whom an order has been given under paragraph (1)(b) shall not conceal, hide, destroy, alter, remove from or send out of Malaysia, or deal with, expend, or dispose of, any book, other document, property, article, or thing specified in the order, or alter or deface any entry in any such book or other document, or cause such act to be done, or assist or conspire to do the act; and (c) a person to whom a written notice has been given under paragraph (1)(c) shall, in his statement made on oath or affirmation, furnish and disclose truthfully all information required under the notice which is within his knowledge, or which is available to him, or which is capable of being obtained by him, and shall not fail to furnish or disclose the information on the ground that it tends to incriminate him. (3) A person to whom an order or a notice is given under subsection (1) shall comply with such order or notice and with the provisions of subsection (2) in relation to the order or notice, notwithstanding the provisions of any written law, whether enacted before or after the commencement of this Act, or of any oath, undertaking or requirement of secrecy, to the contrary, or of any obligation under any contract, agreement of arrangement, whether express or implied, to the contrary. (4) Where any person discloses any information or produces any property, book, other document, article, or thing, pursuant to subsections (1) and (2), neither the first-mentioned person, nor any other person on whose behalf or direction or as whose agent or employee the first-mentioned person may be acting, shall, on account of such disclosure or production, be liable to any prosecution for any offence under or by virtue of any law, or to any proceeding or claim in any form or of any description by any person under or by virtue of any agreement or arrangement, or otherwise. (5) An Inspector may seize, take possession of and retain for such duration as he deems necessary, any property, book, other document, article or thing produced before him in the course of an investigation under subsection (1), or search the person who is being examined by him under paragraph (1)(a), or who produces anything to him under paragraph (1)(b), for ascertaining whether anything relevant to the investigation is concealed, upon such person or is otherwise upon such person.

28 28 Laws of Malaysia ACT 118 (6) An examination under paragraph (1)(a) shall be reduced into writing by the Inspector and shall be read to and signed by the person being examined, and where such person refuses to sign the record, the Inspector shall endorse on the record under his hand the fact of such refusal and the reasons for such refusal, if any, stated by the person examined. (7) The record of an examination under paragraph (1)(a), or a written statement on oath or affirmation made pursuant to paragraph (1)(c), or any property, book, other document, article or thing produced under paragraph (1)(b) or in the course of an examination under paragraph (1)(a) or under a written statement on oath or affirmation made pursuant to paragraph (1)(c), shall, notwithstanding any written law or rule of law to the contrary, be admissible in evidence in any proceedings in any court (a) for, or in relation to, an offence under this Act; or (b) for, or in relation to, any other matter under this Act, regardless whether such proceedings are against the person who was examined, or who produced the property, book, other document, article or thing, or who made the written statement on oath or affirmation, or against any other person. Specific persons in respect of whom powers of investigation may be exercised 10F. The powers of investigation conferred by this Act on an Inspector, may be exercised by him against (a) any past or present business associate; or (b) any person who is or was concerned in the control or management, in whole or in part of the affairs, of the person suspected to have committed an offence under this Act.

29 Housing Development (Control and Licensing) 29 Assistance to police or other public officer 10G. The Controller may on his own initiative, or on the request of an Inspector (a) supply to a police officer or any other public officer a copy of any book or other document seized, detained or taken possession of under section 10A or 10B, or of any record of examination under paragraph 10E(1)(a), or of any written statement on oath or affirmation made under paragraph 10E(1)(c), or of any book or other document produced under paragraph 10E(1)(b), or otherwise in the course of any examination under paragraph 10E(1)(a), or under any written statement on oath or affirmation made pursuant to paragraph 10E(1)(c), and such police officer or other public officer may make such use of such copy of such record, statement, book or other document as may be necessary or expedient in relation to the exercise of his powers, the performance of his functions, or the discharge of his duties, in respect of any person; or (b) allow a police officer or any other public officer to have access to and inspect any property, book, other document, article or thing which had been produced before, or seized, detained or taken possession of, by an Inspector under this Act, and such police or other public officer may make such use of any knowledge gained by such access or inspection as may be necessary or expedient in relation to the exercise of his powers, the performance of his functions, or the discharge of his duties, in respect of any person. Protection of informers 10H. (1) Except as provided in subsection (3), no witness in any civil or criminal proceedings shall be obliged or permitted to disclose the name or address of any informer or the substance and nature of the information received from him or to state any matter which may lead to his discovery. (2) If any books, documents, records or papers which are in evidence or are liable to inspection in any civil or criminal proceedings contain any entry in which any informer is named or described or which might lead to his discovery, the court shall cause all such passages to be concealed from view or to be obliterated so far only as may be necessary to protect the informer from discovery.

30 30 Laws of Malaysia ACT 118 (3) If on trial for any offence under this Act the court after full inquiry into the case believes that the informer willfully made in his complaint a material statement which he knew or believed to be false or did not believe to be true, or if in any other proceeding the court is of the opinion that justice cannot be fully done between the parties to the proceeding without the discovery of the informer, it shall be lawful for the court to require the production of the original complaint, if in writing, and permit enquiry, and require full disclosure, concerning the informer. Authority to act 10I. An Inspector when acting under this Part shall on demand declare his office and produce to the person against whom he is acting such written authorization as the Controller may direct to be carried by such Inspector. Limitation on the powers of an Inspector 10J. No Inspector shall be entitled to exercise any of the powers under this Part without prior written authorization from the Controller. PART V POWERS OF MINISTER Powers of the Minister to give directions for the purpose of safeguarding the interests of purchasers 11. (1) Where on his own volition a licensed housing developer informs the Controller or where as a result of an investigation made under section 10 or for any other reason the Controller is of the opinion that the licensed housing developer becomes unable to meet his obligations to his purchasers or is about to suspend his building operations or is carrying on his business in a manner detrimental to the interests of his purchasers, the Minister may without prejudice to the generality of the powers of the Minister to give directions under section 12 for the purpose of safeguarding the interests of the purchasers of the licensed housing developer (a) direct the licensed housing developer in question to take such steps as he may consider necessary to rectify any matter or circumstance;